In Canada, the principle on which parenting disputes are resolved is that of the “best interests of the child”. However, it has been suggested that the area of law that resolves parenting disputes is “devoid of the attributes of consistency, reliability and predictability” and that in no other area of law do judges “possess so unfettered and broad a discretion for decision making.” The human beings involved in this process, and their behaviour, can be described in the following passage:
Man is, in the most fundamental sense of the word, irrational, and no amount of reasoning, no matter how sophisticated, will produce a complete and consistent account of human behaviours, customs or institutions.
It is within this framework that we must examine whether non-adversarial dispute resolution is a better option in high conflict custody cases where there is a parental personality disorder. Extensive research has shown that parental conflict following separation and divorce has significant long term adverse consequences for the emotional and psychological development of children, and negatively affects many areas of their functioning. Research has also shown that this parental conflict can spill over into other family processes, including increased parent-child conflict, increased conflict in the child’s interaction with others, increased risk that the child will develop antisocial behaviour and a decrease in a parent’s ability to respond to a child’s emotional needs. It is also an important issue because it has been found that a high percentage of individuals who engage in “protracted adversarial processes”, and take up an inordinate amount of time for family law lawyers and the judicial system, show a high percentage of personality disorders.
*Written as part of the coursework for a Master of Laws Specializing in Family Law Degree
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